IN THE CASE OF:  	  

		BOARD DATE:  8 October 2015	  

		DOCKET NUMBER:  AR20150002851 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states he was a young kid when he enlisted and served in Vietnam.  Upon return to the United States he was stationed in Washington, DC during the riots.  There was no help for a 19 year old who had experienced the horrors of war only to come home and have to relive it.  He felt his only option was to run away.  He has led a wonderful life with his wife of 39 years, raised children, and kept himself clean.  He was awarded a Bronze Star Medal and does not believe he should have to suffer the rest of his life for his youthful mistake.

3.  The applicant provides no supporting documents.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army (RA) on 9 September 1965 and he served in Germany from 13 April to 22 December 1966.  He was honorably discharged on 1 November 1966 for immediate reenlistment.

3.  On 2 November 1966 he reenlisted in the RA.  He held military occupational specialty 63C (Track Vehicle Mechanic) and 11E (Armor Crewman).  

4.  He served in Vietnam from 12 February 1967 to 6 February 1968.  He was assigned to Headquarters and Headquarters Troop, 1st Squadron, 4th Cavalry, 1st Infantry Division.  The applicant was awarded the Bronze Star Medal for meritorious service in Vietnam from August 1967 through February 1968. 

5.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 29 August 1968, for speeding on Fort Leonard Wood, MO in his privately owned vehicle on 17 August 1968.  His punishment consisted of a forfeiture of $15.00 pay. 

6.  On 25 March 1969, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 8 September 1968 to 
14 January 1969.  The court sentenced him to hard labor without confinement for 3 months, a forfeiture of $167.00 pay for 3 months, and to be reduced to the rank of specialist/pay grade E-4.  However, a portion of the applicant’s sentence was set aside due to an inconsistent sentence and he was sentenced to a forfeiture of $100.00 pay, in lieu of $167.00 pay for 3 months.  The rest of his sentence appears to have remained the same.

7.  The applicant received an NJP under provisions of the UCMJ on 28 February 1970 for wrongfully using racially provoking words toward several other Soldiers on 2 February 1970.  His punishment consisted of a forfeiture of $50.00 pay for 
2 months and reduction to private/E-2. 

8.  The available record does not contain copies of the documentation surrounding the applicant's discharge processing.

9.  The applicant's DD Form 214 show he was discharged on 3 April 1970, under Army Regulation 635-212, paragraph 14e, misconduct - commission of frequent incidents of a discreditable nature with civil or military authorities.  He completed 2 years and 4 months of creditable active service during this period and 1 year,
1 month and 23 days of prior active service.  He also had 398 days of lost time.  His DD Form 214 shows lost time from 8 September 1968 to 13 January 1969 and from 9 April 1969 to 3 January 1970.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14e of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A UD was normally considered appropriate at the time.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

   a.  An HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service has met the standards of acceptable conduct and performance of duty.

	b.  A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.

12.  Army Regulation 15-185 (ABCMR), states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  It is presumed at the outset that the actions taken by the government are in accordance with law and regulation with no intent to deny the applicant his rights.  In view of all the facts and circumstances in this case, along with the evidence of record and that provided by the applicant, there is no evidence of error or injustice in his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DD Form 214 shows he was discharged on 3 April 1970 under the provisions of Army Regulation 635-212, paragraph 14e, due to misconduct - commission of frequent incidents of a discreditable nature with civil or military authorities.

2.  In the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time and his character of service is commensurate with his overall record.
3.  The applicant had two periods of AWOL and 398 days of lost time, he was found guilty by a special court-martial.  He also had two NJP's.  This misconduct shows that he did not meet the standards of conduct warranting either a GD or an HD.

4.  The mere passage of time is insufficient in and of itself to warrant changing the applicant's character of service and the applicant has not provided any mitigating circumstances sufficient to support his request. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X______   ___
               CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20150002851



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ABCMR Record of Proceedings (cont)                                         AR20150002851



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